The United States is finally recoiling from the mass incarceration crisis that has plagued it for half a century. The world’s largest incarcerator has seen a small drop in prison numbers since 2008. However, the rate of decline is so slow that it would take half a century for incarceration numbers to reduce to historical levels. Further, the drop in prison numbers has occurred against the backdrop of piecemeal reforms, and there is no meaningful, systematic mechanism to reduce incarceration levels. Despite this, there is now, for the first time, a growing public acceptance that prison is a problematic, possibly flawed, sanction. Prison is expensive, inflicts serious unintended suffering on incarcerated people, and profoundly damages families. Alternatives to prison are finally being canvassed. In one respect this is not surprising. The way that we deal with serious offenders has not meaningfully changed for more than 500 years—during all this time, we have simply locked offenders behind high walls. The way we deal with people who have caused serious harm has been more resistant to scientific and technological advances than any other aspect of society. The most radical suggestion regarding prison reform is to abolish prisons. Prison abolition has been a theme in some limited academic quarters for many decades. It had never received anything approaching mainstream credibility as a reform option, but this is now changing. Prominent politicians, social groups, university organizations, and mainstream media commentaries have recently advocated prison abolition. This proposal is no longer a fringe idea. It has gained considerable currency, particularly in light of the dual society-changing phenomena of the COVID-19 pandemic and the Black Lives Matter movement. Yet, the persuasiveness of the proposal to abolish prison evaporates when any degree of intellectual rigor is cast over it. It is likely to go down as naïve idealism due to the absence of any practical alternatives to prison. This Article shores up the notion of prison abolition to the maximum degree that is pragmatically feasible by carefully outlining an alternative to prison and hence addresses what is thought to be an insurmountable flaw in the abolitionist proposal. We advance a viable alternative to prison that involves the use and adaption of existing monitoring and censoring technology, which will enable us to monitor and observe the actions of offenders in real-time and, when necessary, to halt offenders’ potentially harmful acts before they occur. In proposing this new sanction, we provide lawmakers and the community a pathway to abolishing most prisons. The reforms suggested in this Article can result in the reduction of prison numbers by more than 90%, without any diminution in public safety.

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily conventional. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts. This Article makes three contributions. First, it argues that criminal law conventions exist. Second, it explains how nonlegal checks on prosecutorial power bring about criminal law conventions. Third, it provides an account for how legislatures and courts should respond to a criminal law heavily comprised of norms that rely primarily on nonlegal sanctions for their enforcement.